Wednesday, December 31, 2008

Since Prop 8 passed November 4, several groups have sprung up and organized marches and rallies around California.

Now, at least one new group wants another march on Washington, D.C. But others are expressing doubt as to how successful Yes on Gay Marriage, the new group, can be.

Kelley Moran, an organizer with Yes on Gay Marriage, said it was formed to work for marriage in all 50 states and recognition by the federal government.

It's "imperative as a community that we stand up for our civil rights and go to Washington, D.C. and ask for [the Defense of Marriage Act] to be overturned," said Moran, who's openly gay and president of Moran and Associates, a Sacramento-based agency that works in political consulting, public affairs, and other areas.

Moran said Yes on Gay Marriage has a list of several hundred LGBT groups that they're contacting and his organization will be meeting with others in January to discuss a strategic plan.

After some reluctance to be specific, he said the groups include organizations such as the Denver-based Gill Foundation, which on its Web site describes itself as one of the nation's largest private foundations focused on LGBT civil rights.

In a December 29 interview, Moran said communications with the Gill Foundation indicate the foundation is "very interested in hearing more about our organization and our plans."

He said that Patrick Flaherty, Gill's deputy national director, has corresponded with him via e-mail and left him a voice message before Christmas.

Flaherty did not respond to an e-mail from the Bay Area Reporter by press time.

However, in a December 23 interview, Fred Sainz, Gill's vice president for communications, seemed unenthusiastic about meeting with the group.

"Last week, probably three-fourths of the people in our office got an e-mail" introducing Yes on Gay Marriage, Sainz said, adding they learned that people at other organizations had received the same e-mail.

"We merely wrote them back to see who they were, and that is basically the extent of our conversation with them," said Sainz.

On December 30, Sainz called the B.A.R. to discuss the paper's e-mail to Flaherty. He said that Yes on Gay Marriage had contacted Flaherty and told him they would be in Denver for the National Gay and Lesbian Task Force's Creating Change conference, which starts January 28, and wanted to have a meeting. Sainz said that Flaherty had left them a voice mail saying he would welcome such a meeting.

"More than likely we will be entertaining that meeting, but we will entertain that meeting with a very suspicious eye, because given the nature of the organizations that already exist within the movement that are dedicated to marriage and the state of the nation's economy right now, we're going to be looking for how this organization is unique," said Sainz. "That's something that every organization is having to do right now, in an era in which mergers and consolidations is more than anything really the name of the game for all nonprofit organizations," LGBT or otherwise.

Another 'hole in the head'

Steven Goldstein, chairman of the New Jersey group Garden State Equality, said he had no idea who the people behind Yes on Gay Marriage are, but questioned why the new group is necessary.

"The fact is we need another national marriage equality organization like we need a hole in the head," said Goldstein.

Moran said that what sets Yes on Gay Marriage apart from other groups is that "we're leading the charge" in calling for a march. No major group has advocated for a national march, said Moran.

But Robin Tyler, who Moran wasn't familiar with, has been calling for a march for weeks. Tyler, who along with her wife, Diane Olson, recently filed suit against Prop 8 with the state Supreme Court and has called for a national march on Washington in 2010, noted it takes time, money, and permits to organize a march.

Tyler said she hadn't heard of Yes on Gay Marriage until the B.A.R. asked about the group.

"A lot of people are calling for a lot of things, but unless we focus and plan what we are going to do, the newly found energy of our community will dissipate," Tyler wrote in an e-mail.

"... For the people that are calling [for] a national march, and may not have worked on one previously, it is not that easy," Tyler added.

Tyler said she's worked on all four previous marches – which were in 1979, 1987, 1993, and 2000 – and said she's "communicating with activists all over the country, to see the kind of support a march will get. So far, there is great interest."

She wrote, "I truly believe, with the right planning and national input, this could be the largest March on Washington for our community so far. If someone else decides to do it earlier, good luck to them. This is not a competition, it is a movement."

The last march, in 2000, was controversial. The board of directors of the 2000 Millennium March on Washington had refused to release a financial statement, and at the time speculation was that as much as $1 million eventually had gone missing.

Amy Balliett, an out lesbian from Seattle and creator of Join the Impact, a group that's used the Internet to organize events like the numerous anti-Prop 8 protests that took place across the country November 15, expressed the need for caution when planning a march.

Balliett wrote in an e-mail that Join the Impact is not organizing a march, but "will be happy to help once all the groups have decided on a unified date."

"The problem is that there are many groups planning a march on Washington, and unfortunately, until they all come together and unite under one date and banner, this event will only be splintered and attendance will be slim," Balliett wrote.

"We have millions of eyes and ears on this movement and we need to all move together as one. Most of the groups planning a march are doing it for the movement. Unfortunately, some are doing it for the credit of planning the march ...," she wrote, without naming anyone specifically.

Asked if his organization is just trying to make money and get publicity, Moran said, "Absolutely not," and said the group hasn't even asked for contributions.

Moran said the group's forming 501(c)(3) and 501(c)(4) organizations so it can engage in both education and lobbying activities. He said though they are not currently soliciting funds, "we certainly hope to sit down and talk about what's needed in terms of putting together a march on Washington, D.C."

Moran said the group welcomes debate. But since it's been so long since the last march, and especially with the inclusion of anti-gay evangelist Rick Warren in President-elect Barack Obama's inauguration, "It couldn't be more evident we need to make sure our voices are heard" and there's no better forum than the march.

Moran, who said he didn't want to name a date for the march until more work has been done, said it's important to create more activists, and the community's voice should be heard within the first year of the administration taking office.

"We don't want our agenda to be pushed aside," said Moran, who married Gabriel Gendron, his partner of 16 years, in July.

Goldstein, the New Jersey equality official who questioned why Yes on Gay Marriage is needed, also said the term "'gay marriage' is one of the dumbest monikers I've ever heard people curse a new group with."

He said the term implies same-sex couple's marriages are different from other marriages.

Moran said his group is unapologetic for the name.

"What we are seeking is our civil rights as gays to marry," said Moran.

Impact of movement questioned

Meanwhile, despite all the protests and rallies that have occurred since November 4, CNN recently reported that public opinion on same-sex marriage hasn't changed.

In June, 44 percent of those surveyed said that same-sex marriages should be recognized as legally valid, while 53 percent said they should not be recognized, the network reported.

Six months later, the numbers are virtually unchanged. Support for same-sex marriages is still at 44 percent, while opposition is at 55 percent, according to the network, which noted the change is not statistically significant.

The telephone poll of 1,013 adult Americans was conducted by Opinion Research Corporation on December 19-21. The margin of error is plus or minus 3 percentage points.

Balliett, of Join the Impact, wrote, "I think it's too early to tell how the protests are truly affecting people's views on same-sex marriage. Our movement needs to continue visibility and prove that this isn't just a flash in the pan. If we can prove that and continue our outreach and demonstrations, then the public opinion will change."

Kip Williams is working with the group One Struggle, One Fight to plan a march to Sacramento in March [See story, page 3.] and said that on November 15 he and 14 others were arrested in connection with their peaceful, 20-minute blockade of the Highway 101 southbound off-ramp at Market and Octavia streets.

Williams questioned the accuracy of the poll, and said, "This issue doesn't really rest with voters anymore. It rests with the Supreme Court," and it's more important for the court to see the civil unrest than it is for voters.

Besides Tyler and Olson, civil rights groups, and San Francisco and several other local governments have filed lawsuits with the state Supreme Court claiming that Prop 8 is a constitutional revision, rather than merely an amendment, and should have to go through the state Legislature for approval.

State Attorney General Jerry Brown also filed a brief urging the court to throw out Prop 8. But his reasoning finds that the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.

By: ARTHUR S. LEONARD12/18/2008email this storyEmail to a friendpost a commentPost a Commentprinter friendlyPrinter-friendlyAfter watching oral arguments before the seven members of the Iowa Supreme Court December 9 in Varnum v. Brien, the case brought by Lambda Legal on behalf of six same-sex couples seeking marriage licenses in Polk County, which encompasses Des Moines, there are grounds for cautious optimism.

Polk County Recorder Timothy J. Brien, the defendant in the marriage suit, was represented by attorney Roger J. Kuhle, who argued for reversal of a county trial judge who had ruled that same-sex couples have a constitutional right to marry in Iowa. Dennis Johnson, an Iowa attorney appearing as a cooperating attorney for Lambda Legal, defended the trial court's decision.

The Supreme Court had accepted review on two questions - whether the existing law defining marriage as solely between a man and a woman stands up under the Iowa Constitution, and whether the trial judge erred by excluding from evidence some affidavits that Polk County had offered as expert testimony. The trial judge, in ruling on the paper record and oral arguments, decided without considering affidavits from individuals not expert in psychology or sociology who supported the state's argument that the optimal home for raising children is one that includes a parent of each sex.

In defending the trial judge's decision to exclude these affidavits, Johnson argued that they were merely statements of opinion by people without relevant expertise, and that many, many amicus briefs were filed by national organizations on both sides of the issues in this case, so the trial judge and the Supreme Court are not deprived of any information relevant to making this decision. Johnson also argued that even if one hypothesizes that there is an optimal family constellation for raising children, that does not provide a logical basis for excluding same-sex couples from getting married, and providing the benefits of marriage to their children.

Handicapping a court's reaction to oral arguments is always tricky business. The only woman on the court is Chief Justice Marsha Ternus, who asked few questions, but at one prominent point implicitly questioned the logic of Kuhle's argument during his rebuttal. All the other members are white males, making Iowa's among the least diverse state supreme courts in terms of gender and race, though that may be a fair reflection of the legal profession in the state.

I have no real familiarity with the court's track record, other than the claims of the attorneys in this case, particularly Johnson, that Iowa has been in the forefront of defining constitutional rights in advance of the US Supreme Court. That is certainly true in the case of gay rights, where the Iowa high court found state constitutional protection for private, consensual adult sex two generations before the US Supreme Court, back in the 1970s.

The only way I am comfortable "reading" the court in this case is assessing the questioning and back-and-forth between the justices and the attorneys, an analysis that holds out hope that a majority may rule to uphold the trial court in favor of same-sex marriage. That is based, in part, on the quality of the arguments. Kuhle did his best to be persuasive, but could not really get beyond the basic illogic and speculative nature of his argument, while Johnson did an excellent job of making an affirmative argument, using Iowa precedents, to bolster the claim that the Iowa Constitution should be construed to confer the same right to marry on same-sex couples already enjoyed by different-sex couples. It didn't hurt that Johnson pointed out that the very opening of the State Constitution contains a guarantee of freedom and equality to all Iowans.

The most active questioners on the bench were Justices Brent R. Appel, Michael J. Streit, and Mark S. Cady. Less active were David L. Baker, Daryl L. Hecht, and David S. Wiggins. But all asked some questions. The most engaged questioners seemed dubious about Kuhle's arguments.

One advantage in the recent California and Connecticut marriage cases, where same-sex marriage prevailed, is that the procreation issue - the argument that marriage most importantly functions to channel childbirth by heterosexual couples into stable family structures - was pretty much off the table; those states had already legislatively adopted a "separate but equal" status for same-sex couples that conferred all parental rights and responsibilities that marriage would offer, so the state could hardly argue in either case that different-sex couples had some unique claim on such benefits.

The argument is illogical on its face, but has been accepted by quite a few state courts, including - to the utter shame of my home state - in the abysmally reasoned decision by the New York Court of Appeals from two years ago.

Still, Kuhle tried to make this argument a centerpiece of his case, since Iowa has not adopted anything like a civil union law. Johnson called him out on this point by observing that Iowa has gone a long way toward recognizing the parental qualifications of gay people, allowing same-sex couples to be foster and adoptive parents and mandating that sexual orientation not be a factor in custody and visitation disputes. As a matter of public policy, then, Iowa already considers sexual orientation irrelevant to parenting, and is happy to place children who need a home with same-sex couples. That makes mounting the argument that the state has a strong policy interest in making sure that children have parental role models of both sexes more difficult.

Kuhle's argument is not primarily a sexual orientation argument, but more akin to the case accepted by the Florida Supreme Court and the federal 11th Circuit in upholding that state's ban on gay people adopting children - that children benefit in their psychological development by having a parental role model from each sex, and are deprived by having parental role models of only one sex. Politicians refer to "studies" supporting this assertion - of which there is none in any reputable peer-reviewed journal in a relevant discipline - but the judges in the Florida cases have at least been moderately upfront in admitting that they are adopting this view based on "common sense." That's really the same as saying this conclusion is nothing more than their personal opinions based on whatever biases and stereotypes they carry around in their heads.

Kuhle argued that parenting by same-sex couples hasn't been around long enough to know whether children will turn out alright, but that's nonsense. Same-sex couples in large numbers have been jointly parenting children for decades. There are plenty of middle-aged men and women walking around today who grew up in households headed by same-sex couples. At this late date, it is bizarre to assert as a matter of "common sense" that there is some systematic psychological deprivation resulting in gender identity crises for such children, when there is no evidence of that.

Justice Appel, one of the most persistent questioners, got to the heart of the political question before the court - whether it is appropriate for the judiciary to constitutionalize this issue rather than leave it to the political process to play out. He referred to the US Supreme Court's assisted-suicide case, in which great caution was expressed about courts recognizing "new" constitutional rights in matters subject to intense political debate and sharp divisions in the electorate. Some academic critics of the Roe v. Wade abortion ruling point out that it has "poisoned" the Supreme Court judicial confirmation process by making abortion a litmus test for nominees among interest groups on both sides of the question.

And Appel also referred to the judicial "minimalism" concept advanced by various legal scholars, perhaps most prominently Cass Sunstein of Harvard, which argues that courts should avoid making decisions that go beyond incremental change, leaving major policy changes to the political process. Appel noted that respondents had identified hundreds of statutes and policies affected by the right to marry, and asked whether a decision that could affect so broad a range of laws would make ruling in favor of same-sex marriage "too big a move?"

Johnson handled these questions very persuasively, pointing out that Iowa has already taken the process of adopting gender-neutral statutes quite far, meaning that changing the law to allow same-sex couples to marry would not require much in the way of adjustments. He emphasized that the plaintiffs sought to be admitted to the existing institution of marriage, not to redefine or change it regarding any of its legal implications.

Johnson's main theme, thrust home several times during his argument, was that the case is not about same-sex marriage, but rather about whether the right to marry, a long-established and venerable right, is accessible to all Iowans, regardless of their sex or sexual orientation. He argued several times that in evaluating rights claims, the court has never premised the existence of the right on the identity of those claiming it, and that traditional exclusion of a particular group from enjoying a right otherwise freely available has never been accepted as a justification for continuing the exclusion.

Kuhle's major theme, which he came back to repeatedly, was the speculation that if the state were to "promote" same-sex marriages, thus decoupling marriage from procreation, sometime down the line, perhaps 20 years or more in the future, different-sex couples would feel less inclined to marry because the state would have signaled that the institution was not deemed important or necessary as a component of procreation. This would lead, in his view, to an erosion of the traditional marital family as society's central institution, and, he argued, was a "compelling" concern for the state.

This is rank speculation, of course, since there is no way of proving that opening up marriage to same-sex couples will have any effect on the decision-making of different-sex couples about whether to marry. There is no credible evidence that opening up marriage to same-sex couples in the Netherlands or Canada, where same-sex marriage has now been available for several years, has had any demonstrable effect on marriage rates of different-sex couples. Kuhle finessed the point by arguing that the effect may not be discernible for many years. Johnson came back by pointing out that in its constitutional jurisprudence the Iowa court has rejected basing constitutional decisions on speculation not rooted in demonstrable fact.

There was some troubling back and forth about the burden of proof in the case. Johnson conceded that if the court decides this is a "rational basis" case, the burden is on the plaintiffs to show the irrationality of the existing policy, and he got into some argument with a few of the justices about whether the case's record includes such evidence. Johnson insisted that the plaintiffs could meet their burden by showing the illogic of the defendant's arguments, thus leaving no rational explanation in place for the continued exclusion of gay people. He confidently asserted that the record contained no evidence that would justify the ban.

Kuhle argued that there is no "ban," because gay men can marry women and lesbians can marry men. Sandra Day O'Connor disposed of the analogous argument - which will strike many as facetious in any event - in her concurring opinion to strike down the Texas sodomy law in the 2003 Lawrence case.

Justice Cady raised the question whether civil unions would suffice to remedy any potential constitutional inequality. This question was not posed to Kuhle, and he never mentioned the issue of civil unions as an alternative, either in his direct argument or his rebuttal. The question was instead put to Johnson, who insisted that civil unions would be inadequate, pointing to the well-established social meaning of marriage, and to the fact that civil unions would impose a mark of second-class citizenship. He drew a very effective analogy to Brown v. Board of Education, in which Chief Justice Earl Warren wrote that providing "separate but equal" schools did not satisfy the equal protection requirement of the 14th Amendment because of the signal of inferiority that it sent to black school children, causing hurt to their "hearts and minds" unlikely to be remedied. Lack of equal respect is a real harm, Johnson argued, and only full marriage equality would suffice.

The justices seemed to take Johnson's arguments quite seriously, and they raised serious logical objections in their questioning of Kuhle. Whether they were just playing devil's advocate, as judges sometimes will do in an oral argument, was unclear. I was able to forecast exactly the outcome in Hernandez v. Robles, the New York marriage case, after watching the oral argument, but the win in Connecticut came as a complete surprise to me. I thought the same-sex marriage forces were likely to win New Jersey after viewing that argument, but I was less certain after viewing California, though attorneys more familiar with the Supreme Court there were more optimistic.

So I will not make a prediction here, but I am upbeat about the prospect that the same-sex marriage argument will get a fair consideration from this court, and I am reasonably hopeful that if it receives a fair consideration, a Connecticut-like decision will result.

Tuesday, December 30, 2008

To the list of outside interests pressuring Sen. Ruben Diaz Sr. on the issue of same-sex marriage add NYCLU, which has posted a YouTube video featuring footage of a recent event in his district at which members of the LGBT community talked about their coming out experiences.

At the end of the clip, Diaz's fellow Bronx Democrat, Assemblywoman Carmen Arroyo, explains why she voted "yes" on gay marriage in 2007 and also questions the senator's staunch opposition to the measure.

Diaz, a Pentecostal minister, has always said he opposes same-sex marriage for religious reasons, but Arroyo says:

"I don't think that he believes. He talks. He talks against same-sex marriage. I'm going to vote for what I believe is the right thing to do. When I voted for that bill, I did it because I knew that I am protecting members of my family and I'm protecting the majority of the people....This government is for the people and by the people, by the ones that pay taxes. If everybody pay taxes, everybody should have the same rights."

According to NYCLU, the Bronx has more LGBT families than any other borough.

But given the senator's re-affirmation this week of his opposition to gay marriage, it seems unlikely that he will change his position on this issue any time soon, nor does he seem overly concerned about the pressure being brought to bear on him by allies of Senate Democratic Leader Malcolm Smith.

New York State Senator Rev. Ruben Diaz has sent out a mailer reiterating his negative stance in his state's ongoing marriage equality battle.

"I am still a Democrat," Diaz said in the missive. "And I will always be a Democrat." The Senator wrote against proposed budget cuts by Governor Paterson and added that he does not "support the matrimony of homosexual couples."

Diaz is part of a coalition of Democratic lawmakers that seek to prevent the issue of same-sex marriage from reaching the floor, even with the support of Gov. Paterson and the state's recognition of same-sex marriages legally performed outside its borders. In November, during an internal struggle for control of the Senate, Diaz said, "Just give it to me in writing that you will not bring the gay marriage to the floor and you got me." Diaz, along with "dissident Democrats" Sen. Carl Kruger and Senator-elect Pedro Espada Jr., threatened what would otherwise be a commanding Democratic Senate majority, the first since 1965.

The mailer comes after a recent print ad was published by the Working Families Party in an appeal to the "Three Amigos" to unite with Senate Democrats to take full advantage of their majority:

Dear Senator Diaz and Senator-elect Espada:

For decades, our community has suffered under the failed leadership of the Republicans in Albany. People across New York voted to change that in November by electing a Democrat/Working Families majority in the State Senate for the first time in 43 years. Now we can finally look forward to a better education for our children, more healthcare, affordable housing and a real focus on all the issues that matter to working families. But only if you join the Democratic majority that we voted for.

Thousands of your constituents have signed petitions urging you to join the Democrats in the State Senate and be part of this new majority. In the past, you've fought for the economic justice Bronx residents deserve. Nothing is more important to that cause now than ensuring a Democratic Senate majority in January.

Other appeals to the breakaways to assure a firm Democratic majority have also been lodged by organizations such as SEIU and the Empire State Pride Agenda, including a multilingual mailing.

The anti-gay hate group, the American Family Association has called for a boycott of Campbell's Soup over their recent ads featuring LGBT people and families.

So, in response we are calling for a buycott and are urging pro-equality consumers to praise the company for showing a commitment to diversity. Your calls, letters, and emails are needed in the face of the thousands who have called the company with disapproving words.

I re-worded the call to action sent by the AFA:

* Send an email to the Campbell Soup Company President Douglas Conant. Tell him you want his company to continue their commitment to diversity and support of LGBT people and families.

* After sending your email, please call Campbell Soup Company (800-257-8443) and their Swanson division (1-800-442-7684) and let the company know you will continue to support them because of their gay and lesbian ads.

* Forward this e-mail to your friends and family so they will know about Campbell's support of equality and LGBT issues.

Monday, December 29, 2008

PORTSMOUTH — When legislators meet in 2009, there will be several bills to consider that deal with civil unions and gay marriage.

State Rep. Jim Splaine, D-Portsmouth, submitted a bill asking that civil unions, which are currently recognized by the state, be changed to allow marriage. State Rep. Paul McEachern, D-Portsmouth, is co-sponsoring the bill.

"The bill would essentially provide for full marriage equality," Splaine said. "I submitted the bill because I think it's important that we keep this dialogue going."

Splaine said the bill will be presented on Jan. 7 along with the other bills introduced for the session. He said then it will be scheduled for a public hearing or sent to a committee.

Splaine said that although civil unions are recognized in New Hampshire, gay marriage is not. He said a bill introduced by state Rep. David Hess, R-Hooksett, would prohibit New Hampshire from recognizing gay marriages performed in other states as civil unions here.

"I introduced — in 2006 — a civil union bill and a lot of people thought it was not a good time, but it passed in 2007," he said. "I offered an amendment to add full equality for marriage, and that didn't pass. This is my second try at getting full marriage equality."

Splaine said he thinks gay marriage will pass in the state eventually.

"It may not be in 2009, but I believe it will," Splaine said. "I put it in to continue the dialogue, because the more we talk about it, I believe people will see the fairness of full equality. Two years ago, civil unions passing opened the door and has been mostly well received. As of this weekend, there are 610 civil unions in New Hampshire."

There are several other bills on the topic of civil unions and gay marriage. Among them is the one Splaine referred to by Hess.

"It leaves civil unions here unchanged," Hess said. "I think there is a significant difference between civil unions and marriage, which is a concept of tradition recognized all over the world. I think same-sex marriage goes beyond and is not needed.

"Civil unions are not marriage, but a legal concept generated in several states. Same-sex marriage is contrary to Christian traditions and every religious concept of marriage between a man and a woman. Same-sex marriage is an oxymoron, because one of the primary functions of marriage is procreating."

Sunday, December 28, 2008

A Saudi judge recently refused to annul a marriage between an 8-year-old girl and a 47-year-old man -- a union apparently arranged by the girl's father to settle his debts -- a lawyer in the case told CNN.

On Saturday, the judge, Sheikh Habib Abdallah al-Habib, dismissed a petition brought by the girl's mother because she "is not the legal guardian of the girl," the woman's lawyer Abdullah al-Jutaili said.

"Therefore, she cannot represent her daughter in these proceedings," al-Jutaili said.

Her parents are separated, he said.Don't Miss

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According to the lawyer, the girl's father arranged the marriage in order to settle his debts with the man, who is "a close friend" of his.

The judge did ask for a pledge from the husband, who was in court, not to consummate the marriage until the girl reaches puberty, according to al-Jutaili.

The judge ruled that when the girl reaches puberty, she will have the right to request a divorce by filing a petition with the court, the lawyer said.

Christoph Wilcke, a Saudi Arabia researcher for Human Rights Watch, said his organization has heard many other cases of child marriages.

"We've been hearing about these types of cases once every four or five months because the Saudi public is now able to express this kind of anger, especially so when girls are traded off to older men," Wilcke said.

Zuhair al-Harithi, a spokesman for the Human Rights Commission, a Saudi government-run human rights group, said his organization is fighting against child marriages.advertisement

"The Human Rights Commission opposes child marriages in Saudi Arabia," al-Harithi said. "Child marriages violate international agreements that have been signed by Saudi Arabia and should not be allowed."

The spokesman said he did not have specific details about this case but his organization has been able to stop at least one other child marriage.

Friday, December 26, 2008

Rev. Dr. Joseph E. Lowery, President-elect Obama's choice to deliver the benediction at the upcoming Inauguration, said on Tuesday that he hesitates to support civil marriage for same-sex couples. He does, however, support civil unions. Lowery will appear with Dr. Rick Warren, Saddleback Church founder and author of The Purpose-Driven Life, who is slated to deliver the invocation.

Warren has faced criticism over statements comparing same-sex relationships to incest and pedophilia. He was also a vocal supporter of California's Proposition 8. The President-elect has defended his inaugural lineup in the spirit of unity with those with whom one does not always agree.

"I differ with [Rick Warren] sharply on his position on this issue," Lowery told MSNBC's David Shuster. "I don't think we ought to put into law any discriminatory action against people because of race, ethnicity or sexual orientation. I oppose that. But that doesn't stop me from being on a program with him."

"I've never said I support gay marriage," he added. "I support gay rights, and I support civil unions. Like a whole lot of people, I have some difficulty with the term 'gay marriage' because...deeply rooted in my heart and mind, marriage is associated with 'man and woman.' So I have a little cultural shock with that, but I certainly support civil unions, and that gay partners ought to have all the rights that any other citizens have in this country."

By CHRIS JOHNSONDec. 26, 2008The Bush administration issued a “right of conscience” regulation last week that could enable health care workers to deny treatment to gay patients based on religious beliefs, according to activists.

Issued Dec. 18, the rule allows the federal government to withhold funds from health care facilities if they do not permit workers to opt out of performing medical procedures they find objectionable based on religious or moral grounds.

The 127-page regulation, which is estimated to cost $44 million to implement, is primarily aimed at allowing health workers to opt out of performing abortions. But Lara Schwartz, legal director for the Human Rights Campaign, said the rule could enable health care providers to decline to provide services for gay people — even for treatment of a common cold.

“It’s not clear that that is the intent,” she said, “but it absolutely does not preclude that result, which is one of the reasons that HRC submitted comments asking them to draft it differently.”

Schwartz said refusing to provide artificial-insemination services for a lesbian couple would be one possible procedure in which medical workers could refuse to participate based on the regulation.

In a Dec. 19 statement, HRC said a health care worker might be able to refuse to administer an HIV test to gay patients and even be exempt from telling them where else they could receive the test.

Additionally, pharmacists could refuse to fill a prescription for hormone therapy if they have objections to transgender people, HRC says.

Health & Human Services Secretary Mike Leavitt, in a statement Dec. 18, said the rule “protects the right of medical providers to care for their patients in accord with their conscience.”

“Doctors and other health care providers should not be forced to choose between good professional standing and violating their conscience,” he said.

Kevin Schweers, a spokesperson for the Department of Health & Human Services, said the new regulation does not change existing civil rights laws in any way and said “it would be impermissible to decline to provide or participate in a service if the decision is based on an individual’s characteristics that are federally protected.”

There are no protections for sexual orientation under federal law, but HIV-positive people enjoy protections under the Americans with Disabilities Act.

Schweers said under the new regulation, an HIV/AIDS clinic funded through the Ryan White Care Act must still “serve its target population.”

The Department of Health & Human Services will review any complaints alleging discrimination under the new regulation on case-by-case basis, Schweers said.

The regulation goes into effect around the time President-elect Barack Obama takes office on Jan. 20. Cristina Finch, senior legal counsel for HRC, said Obama could issue another rule to rescind President Bush’s upon taking office, but undoing the regulation could take several months.

Congress also could take action on the regulation, but there is no indication from lawmakers or from the Obama administration on how they plan on reacting to the rule, Finch said.

The Obama transition team did not respond to a request for comment on how it would respond to Bush’s regulation.

Last month, Sens. Hillary Clinton (D-N.Y.) and Patty Murray (D-Wash.) introduced legislation to repeal the rule, but the bill will die when the congressional session ends this year.

U.S. Rep. Tammy Baldwin (D-Wisc.), the only out lesbian in Congress, condemned the regulations in a Dec. 18 statement and said she is “deeply troubled by the Bush administration's latest attack on patients' rights and the doctor-patient relationship.”

“Medical care must be based on science and the patients’ best interest, not the providers’ religious, political or other philosophical views,” she said.

HRC President Joe Solmonese said in the Dec. 19 statement that the regulations “sacrifice patients’ right to medical care, permitting providers to refuse to do their jobs when they choose.”

“Denying patients legal, safe medical treatments for any reason is simply wrong, and violates the trust that all Americans, regardless of our sexual orientation or gender identity, place in our doctors, nurses and pharmacists,” he said.

Tuesday, December 23, 2008

Robert and I marched in this event in NYC. Boy was it cold but it was nice to see a couple of hundred people show up. I remember the days when it used to be a handful of protesters fighting for marriage equality. NYC below above link to others around the nation

Monday, December 22, 2008

Sen. Ruben Diaz Sr., who infuriated gay advocates for tying his state Senate leadership vote to the issue of same-sex marriage, released a statement yesterday praising Barack Obama for picking Rick Warren to deliver his inaugural invocation - a move that is unlikely to improve the conservative Democrat's standing with the LGBT community.

By selecting Warren, the Evangelical pastor of the Saddleback Church and an opponent of what Diaz refers to as "homosexual marriage," the president-elect has "set an example that many leaders of the Democratic Party should follow," the senator said.

Some in the gay community have deemed Obama's selection of Warren, who publicly supported Proposition 8, which amended the California Constitution to ban gay marriage, as tantamount to "endorsing bigotry." Both Obama and Warren have defended the decision.

Diaz sees Obama's move as something more personal - a confirmation of sorts that anti-same-sex marriage, anti-abortion rights Democrats like himself have a role to play in the party.

"Obama has sent a message to the world that 'Yes We Can' has a Democratic Party where everyone should be included," Diaz continued. "It has been the belief that the Democratic Party is owned exclusively by certain groups, and if you do not believe in nor follow the ideology of these groups and their agendas, then you will be a registered outcast. You will never be invited to official Party activities. You will not get their support, and they call you names and do everything possible to push you out of the Democratic Party."

"To some people, if you oppose homosexual marriage and abortion, you are not a Democrat and you are certainly not be invited to deliver an inaugural invocation."

"To those people, it does not matter how hard you fight to protect human services by creating job opportunities for your community, bringing low income housing to the poor, fighting against the closing of health services, protecting the immigrants, and opposing the Governor of the State of New York and the Mayor of the City of New York for cutting needed services when they try to balance their budgets on the backs of the poor and less fortunate families and senior citizens."

"By rejecting the call to dis-invite Reverend Warren and by welcoming him to deliver the inauguration ceremony’s invocation in Washington, DC, Barack Obama has sent a message of inclusion...that we should be welcome all the time, not only to be used when they want our votes, support and participation in coalitions to benefit others.

The time has come for a change. The Democratic Party should not be a party of only two issues: Abortion and homosexual marriage. Everybody should be accepted: Orthodox Jews, Evangelical Christians, Catholics, Muslims, and those with religious beliefs that oppose abortion and homosexual marriage. YES WE CAN!

Saturday, December 20, 2008

Civil unions are an inadequate substitute for marriage. Creating a separate, new legal structure to confer some benefits on same-sex couples neither honors American ideals of fairness, nor does it grant true equality. The results are clearly visible in New Jersey, which continues to deny same-sex couples some of the tangible civil benefits that come with marriage.

Gov. Jon Corzine of New Jersey has long said that he would sign a measure granting the right to marry to couples of the same sex. We are heartened that he has declared that that should happen sooner rather than later.

We hope Mr. Corzine intends to prod legislators into passing such a law early in the 2009 session. That would make New Jersey the first state to legalize marriage for same-sex couples through legislative action. Three other states — Connecticut, Massachusetts and California — have done so through the courts. Unfortunately, California voters approved a ballot measure in November rescinding that right, at least for now.

Mr. Corzine made his statement after a state commission released its final report on New Jersey’s two-year-old civil union law. The commission noted the hurt and stigma inflicted by shutting out gay people from the institution of marriage. It also found that civil unions do not assure gay couples of the same protections, including the right to collect benefits under a partner’s health insurance program and to make medical decisions on behalf of a partner who is unable to do so. The panel concluded unanimously that the state should enact a law to remove the inequities.

We regret that the leaders of the state’s Democratic-controlled Legislature do not view this issue with the same urgency. Senate President Richard Codey, for instance, said recently that progress in civil rights areas “is typically achieved in incremental steps.” We suspect that political expedience is clouding Mr. Codey’s sense of fairness. Next year in New Jersey, the governorship and all seats in the Assembly are up for grabs in an election. Some Republicans already are talking about making their opposition to same-sex marriage a campaign issue.

Governor Corzine typically takes the right side on important issues, but he has been known to retreat in the face of opposition. We hope that’s not the case here. It’s past time for him and for the Democrats in Trenton to find the political courage to extend the right to marry to gay couples.

Friday, December 19, 2008

The California Attorney General Jerry Brown has asked the state Supreme Court to strike down Proposition 8, arguing that the voter-passed ban on gay marriage is unconstitutional.

Brown, the state's chief law enforcer, said after the measure passed last month that he would defend it in court.

But in his surprise filing this afternoon, Brown said as the "chief law officer of the state, he is "duty bound to uphold the whole of the Constitution" and not merely the power of the people to change the laws by initiative Brown also said that Proposition 8 "deprives people of the right to marry, an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution."

Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification,"

he wrote in responses to challenges filed by gay-right supporters, according to the Los Angeles Times.

Hours earlier, sponsors of Prop. 8 filed arguments asking the court to uphold the ballot measure, which passed with a 52 percent majority. Andrew Pugno, attorney for the Yes on 8 campaign, said he was disappointed by Brown's stance.

The court ruled 4-3 on May 15 of this year that California's ban on same-sex marriage violated the constitutional rights of gays and lesbians to marry the partner of their choice and discriminated on the basis of sexual orientation.

However Prop. 8 amended the state Constitution to overturn the ruling and declare that only marriage between a man and a woman is "valid or recognized in California."

SAN FRANCISCO -- The sponsors of Proposition 8 asked the California Supreme Court on Friday to nullify the marriages of the estimated 18,000 same-sex couples who exchanged vows before voters approved the ballot initiative that outlawed gay unions.

The Yes on 8 campaign filed a brief arguing that because the new law holds that only marriages between a man and a woman are recognized or valid in California, the state can no longer recognize the existing same-sex unions. The document reveals for the first time that opponents of same-sex marriage will fight in court to undo those unions that already exist.

"Proposition 8's brevity is matched by its clarity. There are no conditional clauses, exceptions, exemptions or exclusions," reads the brief co-written by Kenneth Starr, dean of Pepperdine University's law school and the former independent counsel who investigated President Bill Clinton.

The campaign submitted the document in response to three lawsuits seeking to invalidate Proposition 8, the constitutional amendment adopted last month that overruled the court's decision in May that had legalized gay marriage in the nation's most populous state.

Both Attorney General Jerry Brown, whose office is scheduled to submit its own brief to the court Friday, and gay rights groups maintain that the gay marriage ban may not be applied retroactively.

The Supreme Court could hear arguments in the litigation as soon as March. The measure's backers announced Friday that Starr, a former federal judge and U.S. solicitor general, had signed on as their lead counsel and would argue the cases.

Proposition 8's supporters assert that the Supreme Court lacks the authority or historical precedent to throw out the amendment.

"For this court to rule otherwise would be to tear asunder a lavish body of jurisprudence," the court papers state. "That body of decisional law commands judges -- as servants of the people -- to bow to the will of those whom they serve -- even if the substantive result of what people have wrought in constitution-amending is deemed unenlightened."

The cases are Strauss v. Horton, S168047; City and County of San Francisco v. Horton, S168078; and Tyler v. State of California, S168066.Copyright 2008 Associated Press

Kenneth W. Starr, the former U.S. Solicitor General who led the inquiry into President Bill Clinton’s affair with Monica L. Lewinsky, will argue the case in favor of upholding a ban on gay marriage before the California Supreme Court.

Starr was today named lead council for the official proponents of Proposition 8. This afternoon, the group filed court briefs defending the legality of the proposition, which was approved by 52% of California voters last month throwing into question thousands of marriages performed during the five months the practice was legal in the state.

The briefs are in response to a spate of legal challenges filed by gay rights advocates, including the cities of San Francisco and Los Angeles.

Opponents of the proposition argued that it amounted to a constitutional revision instead of a more limited amendment.

A revision of the state constitution can only go before voters after a two-thirds vote of the Legislature or a constitutional convention. Proposition 8 was put on the ballot after a signature drive. The case poses a series of provocative legal challenges.

The first among them is that California Atty. Gen. Jerry Brown, who opposed Proposition 8 but is legally bound to defend the state’s laws, must now weigh in on the challenge. Brown has in recent days been called upon to declare it a revision. In the past, he has said he plans to “defend the proposition as enacted by the people of California.”

But he has also said he believes that the estimated 18,000 same-sex marriages performed between June and November should remain valid.

Because it did not trust Brown to mount a staunch defense of the proposition, the group Protect Marriage intervened in the case and filed its own brief. It argues that the same-sex marriages are no longer valid. Brown’s briefs are due later today.

(New York City) The United States Thursday became the lone major western nation to refuse to sign a United Nations statement affirming that human rights protections include sexual orientation and gender identity.Send / ShareAdd CommentRama Yade, French foreign affairs and human rights secretary, appeared before the United Nations General Assembly on Thursday to present the document calling for the Universal Declaration of Human Rights to be amended to include the new protections.

The document has been signed by the member states of the European Union. It was drafted by France which currently holds the rotating EU Presidency. But it also has been signed by about 40 other states.

In all 66 of the U.N.’s 192 member countries signed the nonbinding declaration.

Other countries besides the US who refused to sign the declaration were Islamic countries, Russia and China.

The Vatican also has voiced its opposition. Archbishop Celestino Migliore, the Vatican’s permanent observer at the UN, said in a statement earlier this month that the declaration would discriminate against states which support traditional marriage.

Appearing with Yade on Thursday at the General Assembly was dutch foreign minister Maxime Verhagen and a panel of political figures, human rights experts and LGBT defenders from all continents.

Yade said it was necessary to call the international community’s attention to violence against individuals because of their sexual orientation and gender identity. The text of the document calls specifically for all countries to de-criminalize homosexuality.

It also provides support to all human rights defenders who are working in the field, often in difficult conditions.

According to some of the declaration’s backers, U.S. officials expressed concern in private talks that some parts of the declaration might be problematic in committing the federal government on matters that fall under state jurisdiction.

In numerous states, landlords and private employers are allowed to discriminate on the basis of sexual orientation; on the federal level, gays are not allowed to serve openly in the military.

“It’s an appalling stance - to not join with other countries that are standing up and calling for decriminalization of homosexuality,” said Paula Ettelbrick, executive director of the International Gay and Lesbian Human Rights Commission.

She expressed hope that the U.S. position might change after President-elect Barack Obama takes office in January

Meanwhile, a report issued by Human Rights Watch called laws against homosexuality an oppressive legacy of colonialism.

The 66-page report is called “This Alien Legacy: The Origins of Sodomy Laws in British Colonialism.” It details that sodomy laws were imposed on over three dozen countries, from India to Uganda and from Nigeria to Papua New Guinea by the British Empire in the 1800s.

The British colonial rulers imposed the law against sodomy in India in 1860. This year, the High Court in Delhi ended hearings in a years-long case seeking to decriminalize homosexual conduct there. A ruling in the landmark case is expected soon.

“Half the world’s countries that criminalize homosexual conduct do so because they cling to Victorian morality and colonial laws,” said Scott Long, director of the lesbian, gay, bisexual, and transgender rights program at Human Rights Watch. “Getting rid of these unjust remnants of the British Empire is long overdue.”

Some national leaders have defended sodomy laws as reflections of indigenous cultures. Zimbabwe’s Robert Mugabe, for example, has called gays and lesbians “un-African” and “worse than dogs and pigs.”

The Human Rights Watch report shows, however, that British colonial rulers brought in these laws because they saw the conquered cultures as morally lax on sexuality. The British also wanted to defend their own colonists against the “corrupting” effect of the colonies. One British viceroy of India warned that British soldiers could succumb to “replicas of Sodom and Gomorrah” as they acquired the “special Oriental vices.”

Today, international human rights standards have compelled former colonial powers to acknowledge that these laws are wrong. England and Wales decriminalized homosexual conduct in 1967. The European Court of Human Rights found in 1981 that a surviving sodomy law in Northern Ireland violated fundamental rights protections.

In 1994, the UN Human Rights Committee - which authoritatively interprets the International Covenant on Civil and Political Rights - held that sodomy laws violate the rights to privacy and to non-discrimination.

By Chase Martyn 12/16/08 11:30 AM The Iowa Supreme Court heard oral arguments a week ago today in Varnum v. Brien, a case that puts the state’s definition of marriage as between one man and one woman into question. At issue throughout the arguments was which standard the court should use to evaluate whether the Iowa statute that prevents same-sex couples from marrying violates the equal protection guarantees within the Iowa and federal constitutions.

On the eve of oral arguments, former Iowa Supreme Court Justice Mark McCormick told the Iowa Independent that there were two possible standards that the court could choose to apply to the statute: they could apply the “rational basis” test, or they could choose to apply “strict scrutiny.”

The two standards have evolved in federal case law as accepted interpretations of the “Equal Protection Clause” in the 14th Amendment to the U.S. Constitution. In cases like Varnum v. Brien where a plaintiff claims that a law violates his or her right to equal protection under the law, courts are generally restricted to using one of the two in their decisions.

Read on for some background on each standard and how they might apply to Iowa’s same-sex marriage case.

“Rational basis”

The rational basis test is generally considered to be the looser of the two available standards, which means that Iowa’s ban on same-sex marriage is more likely to be deemed constitutional if the court chooses to apply it rather than strict scrutiny. The standard essentially requires the court to answer the following question: is the law in question reasonably related to the achievement of a legitimate government interest?

If the Iowa court chooses to apply the rational basis test to Varnum v. Brien, they must decide (1) whether Iowa’s law defining marriage as between only one man and one woman serves to further a particular goal, and (2) whether the goal that the law helps to achieve is within the bounds of what government is supposed to do.

In federal case law, the most relevant application of the rational basis test in the context of gay rights is likely Romer v. Evans, which tested the constitutionality of an amendment to the Colorado state constitution that made it illegal for local governments to enact laws protecting homosexuals from discrimination on the basis of their sexual orientation.

Despite the Rehnquist court’s choice to apply the looser standard to the Colorado amendment, it was still struck down as unconstitutional. Justice Anthony Kennedy’s majority opinion said that the amendment’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”

“Strict scrutiny”

The strict scrutiny standard is considered by some legal scholars to be “strict in theory, fatal in fact,” because when a court chooses to apply it to a law, the law in question is almost always struck down. (On the federal level, this claim is empirically questionable, but the statement still reflects the general perception of the difference between the two standards.)

The standard evolved from a footnote in the 1938 U.S. Supreme Court decision U.S. v. Carolene Products and is said to apply only to laws which affect or single out “suspect classifications,” or groups who have traditionally faced discrimination and lacked the political power to improve their circumstances alone. Laws must also be seen to involve “fundamental rights” to receive this heightened level of scrutiny.

Strict scrutiny includes the requirements embodied within the rational basis test and adds two more:

First, to pass strict scrutiny, a law must not only be reasonably related to a legitimate government interest, but it must be “narrowly tailored” to it. If the law is too broad and affects people in ways that do not achieve the legitimate government interest, or if the law is too narrow and fails to address essential elements embodied by the legitimate government interest, it is unconstitutional.

Second, the law must use the least restrictive means available to achieve the legitimate government interest. If there exists another solution to the problem at hand that would affect people less, the more restrictive solution is unconstitutional.

The extent to which a law must be explicitly targeted at a suspect class in order for it to receive strict scrutiny remains somewhat ambiguous in federal case law, but a law could receive strict scrutiny even if it does not refer to a suspect class, so long as there is evidence that it was intended to affect a suspect class when it was written.

Applying the two standards in Varnum v. Brien

In last week’s oral arguments, Assistant Polk County Attorney Roger Kuhle argued that the court should apply the more lenient rational basis test to Iowa’s definition of marriage. He argued that the current law was not intended to be discriminatory against homosexuals, because it makes no explicit mention of them and served only to reinforce a law that was already on the books when it was passed in 1998.

While Kuhle conceded that marriage should be considered a fundamental right, he said that it was a right to join only opposite-sex unions, because that is how marriage should be defined. If the court chose to define the right differently, he argued, it would be presuming a new definition of marriage (as something other than between one man and one woman) before deliberations even began.

Kuhle also argued that ‘homosexual’ is not a suspect classification and should therefore not trigger the requirements of strict scrutiny. Sexual orientation, he said, is different from other classifications like race and gender.

To satisfy the rational basis test, Kuhle focused on what he claimed was the government’s legitimate interest in providing an optimal environment for raising children. Opposite-sex couples, he argued, make for the best conditions for raising children, and Iowa’s law restricting marriage to those couples bears a rational relationship to the legitimate government interest.

Arguing for the plaintiffs, Dennis Johnson asked the court to apply strict scrutiny to Iowa’s marriage law. Sexual orientation should be considered a suspect classification, he argued, and Iowa’s definition of marriage was passed with the clear intent to exclude same-sex couples.

Both sides agreed that marriage should be considered a “fundamental right,” but they disagreed about how that right (or “constellation of rights”) should be defined. This definitional disagreement could be the deciding factor in which standard the court chooses to apply.

But Johnson also asserted that Iowa’s marriage law would not even satisfy the looser requirements of the rational basis test, should the court choose to apply it. He disputed Kuhle’s claims that same-sex couples are inferior at raising children. Both sides have provided evidence to support their arguments already, so they did not dwell on this point Tuesday.

Johnson also argued that the government’s interest in providing an optimal environment for raising children was not well served by a law preventing same-sex couples with children from achieving the stability and validation embodied in marriage. Even if opposite-sex couples are better at raising children, he argued, same-sex couples have raised children in Iowa and they will continue to do so, with or without the right to marry. If that is true, then the government’s interest in raising children in an optimal environment would be best served by allowing same-sex parents to marry.

If the court chooses to apply strict scrutiny to Iowa’s law defining marriage as a union of one man and one woman, it is likely to uphold the trial court’s decision to effectively legalize same-sex marriage. As Kuhle pointed out, the court would have already decided on a new definition of the right to marry if they concluded that the more stringent standard was appropriate.

But if the court applies the rational basis test, they could still side with the plaintiffs. The Massachusetts Supreme Court applied that standard, and they still concluded that same-sex couples should have the right to marry. Polk County Judge Robert Hanson chose to apply strict scrutiny, but his ruling also concludes that Iowa’s ban on same-sex marriage would violate the rational basis test. Should the court reverse Hanson’s decision to apply strict scrutiny, they might still side with him when applying the looser standard.

A caveat

There exists a third standard called “intermediate scrutiny” that would fall between strict scrutiny and rational basis review in terms of strictness. It is similar to strict scrutiny, but rather than requiring that a law be “narrowly tailored” to a legitimate government interest, it must only be “substantially related” to the interest. This standard has been applied to cases of sex discrimination, but in those cases, some analysts have argued, intermediate scrutiny has become almost as strict as strict scrutiny.

Intermediate scrutiny has received less attention than the other two standards in Varnum v. Brien, but it is possible that the Iowa Supreme Court could choose to apply it anyway

NEW YORK (AP) — State officials will now let married same-sex couples list both their names on their children's birth certificates in a policy shift deeply important to many gays and lesbians.

The decision, which echoes similar provisions in states that allow gay marriages or civil unions, is one of many changes since Gov. David Paterson ordered state agencies in May to respect out-of-state gay marriages.

The state Health Department said Friday it had agreed to the change, which came after a lesbian couple who are expecting a baby filed a lawsuit. The change would apply statewide except in New York City, which is considering revamping its own birth certificate forms to accommodate same-sex couples.

Under state law, a woman's husband is automatically deemed a parent of a child the pair conceives through artificial insemination, whether or not he is the genetic father. Gay couples have complained about having to jump through legal hoops to secure equivalent parental rights.

Carolyn Trzeciak and Nina Sheldon Trzeciak of Ulster County, who got married in Canada in 2006, sued last month. Nina Sheldon Trzeciak is carrying their first child, conceived through in vitro fertilization.

The couple argued they both should be designated as parents under Paterson's directive. The governor told state agencies to make sure policies and regulations treat married same-sex couples equally, saying a recent court ruling suggests they would otherwise risk discrimination claims.

Gay couples may be able to secure a second parent's rights through adoption. But having their names on a child's birth certificate immediately gives both spouses such rights as nursery visits and information on the child's medical condition, the lawsuit said.

The Health Department said in a statement that it had been exploring how to apply Paterson's directive to birth certificates for some time but arranged a quick resolution for the couple because the baby was due Friday.

Massachusetts is now the only U.S. state that allows gay marriages; California briefly did until voters banned it last month. Some other states let same-sex couples enter into civil unions that offer some of marriage's legal advantages.

States that allow gay marriage or civil unions have made provisions for birth certificates to list both partners' names, said Susan Sommer, senior counsel for the gay rights advocacy group Lambda Legal. It was not involved in the Trzeciak case.

While the group urges couples to cement both parents' rights through an adoption or other court order, Sommer said getting the names of both parents on the birth certificate is a great help to the children.

The Alliance Defense Fund, a conservative legal organization based in Scottsdale, Ariz., is challenging various attempts to extend spousal rights to gay couples in New York. In September, a Bronx judge threw out the group's challenge to Paterson's directive; the organization is appealing.

The alliance argues that only the Legislature, not the governor, has authority to recognize out-of-state gay marriages.

Wednesday, December 10, 2008

While Rome . . . and Utica and Syracuse and the rest of New York burn, the state Senate Democrats in Albany continue their effort to snatch defeat from the jaws of November victory. Their jockeying for control of the chamber, finally wrestled from Republicans, has apparently reached a crescendo, with winners and losers emerging - in the Legislature, of course, but also among innocent bystanders. The outcome of the political battle is important, because it will help order how Gov. David Paterson maneuvers in the midst of the state's worsening budget and economic crisis.

Which Democrats stood to sit in which leadership chairs appeared to be a moving target through much of yesterday as Malcolm Smith of Queens, the top Democrat in the Senate, cut short a morning press conference that he called to discuss the moves. What seems to be clear is, when the Democrats officially end the Republicans' long control of the chamber in January, the top job will go to Smith; an upstate lawmaker, Sen. William Stachowski of Buffalo, will take another top post; Sen. Jeffrey Klein, Westchester-Bronx, would rise as well.

Perhaps most significant, Sen.-elect Pedro Espada Jr. of the Bronx, among a group of dissident Democrats who threatened to upset the Democrats' ascent if Latino lawmakers weren't invited to share power, was expected to gain a major post, if not all the traditional duties (and influence) that customarily go with it. Espada and his dissenting partners wield such power because the Democrats' majority is so narrow; the party's November victories will give it a 32-30 edge over the Republicans. Such a narrow margin has Smith at the ready to placate and pacify, or risk defections that would cede control of the chamber back to the GOP.

But there was collateral damage from these machinations, the victims being ordinary New Yorkers far from the infighting. According to news report, Sen. Ruben Diaz Sr. of the Bronx, among the trio of dissenting Democrats, as well as a minister and a conservative, said he was promised by Smith that a bill to legalize same-sex marriage in New York would be kept off the Senate floor, notwithstanding wide support in the Democratic conference. The General Assembly has already approved such legislation, and Paterson has been vocal about his backing. Passage in the full Senate had been expected to follow the Democrats' takeover.

The gay-marriage measure is important because (1) New York's highest court has said that the issue is one for the Legislature to decide, not the courts; (2) the Legislature should not abdicate its duties and stand on the sidelines as other state's marriage laws shape the rights and options available to New Yorkers; (3) it is past time for New York to end the unequal treatment and unfairness in its marriage laws. That history will surely be made in New York; there is no sound reason for further delaying what is fair and inevitable.

Sen. Smith - as well as Sen. Klein - has promised a number of substantive reforms when the Democrats take control of the Senate, long overdue measures that will advance the interests of better governance, including providing a stronger voice for those out of power. It should be a major embarrassment to Smith, Klein and the other leaders if the new Democratic majority has to sacrifice or step on the fundamental rights of others in order to advance their conference's own agenda.

While Rome . . . and Utica and Syracuse and the rest of New York burn, the state Senate Democrats in Albany continue their effort to snatch defeat from the jaws of November victory. Their jockeying for control of the chamber, finally wrestled from Republicans, has apparently reached a crescendo, with winners and losers emerging - in the Legislature, of course, but also among innocent bystanders. The outcome of the political battle is important, because it will help order how Gov. David Paterson maneuvers in the midst of the state's worsening budget and economic crisis.

Which Democrats stood to sit in which leadership chairs appeared to be a moving target through much of yesterday as Malcolm Smith of Queens, the top Democrat in the Senate, cut short a morning press conference that he called to discuss the moves. What seems to be clear is, when the Democrats officially end the Republicans' long control of the chamber in January, the top job will go to Smith; an upstate lawmaker, Sen. William Stachowski of Buffalo, will take another top post; Sen. Jeffrey Klein, Westchester-Bronx, would rise as well.

Perhaps most significant, Sen.-elect Pedro Espada Jr. of the Bronx, among a group of dissident Democrats who threatened to upset the Democrats' ascent if Latino lawmakers weren't invited to share power, was expected to gain a major post, if not all the traditional duties (and influence) that customarily go with it. Espada and his dissenting partners wield such power because the Democrats' majority is so narrow; the party's November victories will give it a 32-30 edge over the Republicans. Such a narrow margin has Smith at the ready to placate and pacify, or risk defections that would cede control of the chamber back to the GOP.

But there was collateral damage from these machinations, the victims being ordinary New Yorkers far from the infighting. According to news report, Sen. Ruben Diaz Sr. of the Bronx, among the trio of dissenting Democrats, as well as a minister and a conservative, said he was promised by Smith that a bill to legalize same-sex marriage in New York would be kept off the Senate floor, notwithstanding wide support in the Democratic conference. The General Assembly has already approved such legislation, and Paterson has been vocal about his backing. Passage in the full Senate had been expected to follow the Democrats' takeover.

The gay-marriage measure is important because (1) New York's highest court has said that the issue is one for the Legislature to decide, not the courts; (2) the Legislature should not abdicate its duties and stand on the sidelines as other state's marriage laws shape the rights and options available to New Yorkers; (3) it is past time for New York to end the unequal treatment and unfairness in its marriage laws. That history will surely be made in New York; there is no sound reason for further delaying what is fair and inevitable.

Sen. Smith - as well as Sen. Klein - has promised a number of substantive reforms when the Democrats take control of the Senate, long overdue measures that will advance the interests of better governance, including providing a stronger voice for those out of power. It should be a major embarrassment to Smith, Klein and the other leaders if the new Democratic majority has to sacrifice or step on the fundamental rights of others in order to advance their conference's own agenda.

In a report comprehensive in scope and sweeping in its conclusions, an official government commission in New Jersey recommended that the Legislature change state law "to allow same-sex couples to marry" and to do so "expeditiously because any delay in marriage equality will harm all the people of New Jersey."

The findings, released on the morning of December 10 and which ran to 45 pages plus appendices, were issued in the "final report" of the New Jersey Civil Union Review Commission, a 13-member body established when civil unions were enacted in late 2006. The Legislature adopted the civil union law in response to a State Supreme Court ruling that October mandating that New Jersey afford same-sex couples all the rights and benefits of marriage.

Gay City News received an advance copy of the report on December 9.

The Review Commission was created to monitor the effectiveness of the civil union law in meeting the mandate laid out by the high court, and its establishment represented a significant consolation prize for Garden State Equality, New Jersey's LGBT rights lobby group, which had unsuccessfully pressed the Legislature and Democratic Governor Jon Corzine to enact a marriage equality law in response to the court ruling. At the time, the governor and legislative leaders were not publicly antagonistic toward full marriage equality, but argued that a civil union law should first be given a chance to meet the court mandate.

The Review Commission decisively found that the law fell short in addressing the equality requirements of the Supreme Court ruling.

"I believe that New Jersey will be the first state in the union to enact marriage equality through legislation," said Steven Goldstein, chairman of Garden State Equality and the co-chairman of the Review Commission. "With this report, I believe it is more likely than ever to happen very soon."

Asked if he thought it was possible that a marriage equality bill could be enacted in 2009, prior to statewide elections in New Jersey in November, Goldstein responded, "I would not preclude that possibility."

The governor and the entire State Assembly face the voters next November, but not the State Senate, which has four-year terms that end after November 2011. Both Senate President Richard J. Codey (the former acting governor) and Assembly Speaker Joseph J. Roberts, Jr., - the two men are Democrats - have said they support marriage equality, while Corzine has for more than a year acknowledged that he would sign a marriage law if it came to his desk. Although the Senate, which is not up for election in 2009, has only a narrow Democratic majority, in the Assembly, the party has a commanding advantage over the Republicans.

Even though the Review Commission issued a preliminary report in early 2008 identifying significant shortfalls in the ability of civil unions to deliver true equality, the unanimity and boldness of the final report are striking.

"Given where we started and the fact that nearly half of the commissioners are government employees from a state that fought to defend the status quo on marriage in court, this result is surprising," said J. Frank Vespa-Papaleo, the Review Commission chairman who is director of the state Division on Civil Rights. "To have gone from that to these conclusions speaks volumes about the comprehensiveness and transparency of this review process and about the quality of the information we gathered."

Five of the 13 commissioners represent state government agencies that report directly to Corzine - in addition to Vespa-Papaleo's Civil Rights Division, the departments of Human Services, Banking and Insurance, Health and Senior Services, and Children and Families. A sixth commissioner represents the state attorney general, Anne Milgram, a Corzine appointee herself, but one with broad statutory independence from the governor.

Of the other seven commissioners, five were appointed by the governor, and one each by the Senate president and the Assembly speaker. Goldstein was appointed by Speaker Roberts.

The Review Commission report laid out a range of criteria, on each of which civil unions were judged as failing to deliver equality. It also labored to incorporate the personal stories from the more than 150 witnesses who testified at eight public hearings lasting a cumulative 26 hours. In perhaps the most pointed indictment of the separate status for same-sex couples created by the New Jersey Legislature, Lynn Fontaine Newsome, president of the state Bar Association, told the commissioners that the law is "a failed experiment."

Among the key conclusions were that the law fails to provide members of civil union couples with the ability to act as a spouse in making health care decisions for their partners in emergency situations; that employers continue to discriminate against civil union couples as compared to their married employees; that the public in general had an inadequate and often mistaken understanding of what civil unions are; that the children raised by civil union couples are disadvantaged relative to those in married households; and that people of color couples face particularly difficult burdens in gaining equal access to the rights and benefits that marriage would provide.

The report opens with an especially compelling case of a Montclair civil union partner confronted with a potentially fatal cardiac arrhythmia that landed her in an emergency room. Gina Pastino testified that even though she gave the hospital all the relevant information about her family members, including her civil union partner Naomi, when Naomi arrived at the emergency room, the attending physician said he did not know what a civil union was. As the result, valuable time treating Gina was wasted in clarifying her partner's authority to make medical decisions.

In the case of a Plainfield couple, a gay man was not allowed to visit his partner in an emergency room and was finally removed from the hospital by security.

Most of the employers who refused to extend equal benefits to civil union couples cited the federal Employee Retirement Insurance Security Act (ERISA) that exempts from state regulation all companies that "self-insure," rather than relying on a third-party insurer to take on the cost risk of their health care benefits plan. According to the Review Commission, an estimated 50 percent of all companies in New Jersey self-insure.

It is not clear whether full marriage rights for same-sex couples would alter the legal impact of ERISA - New Jersey might still be constrained from requiring equal treatment under self-insurance plans - but the Review Commission argued that in practice the ERISA problem would largely subside.

"The testimony suggests that employers may decline to provide insurance and health benefits to civil union partners not because of an objection to the government recognition of same-sex couples, but because of the term used by statutes establishing government sanctioned same-sex relationships," the Review Commission wrote.

In fact, testimony from Massachusetts pointed to employer acceptance of same-sex marriages despite the potential for them to invoke the ERISA loophole. Tom Barbera, a vice president of that state's AFL-CIO, testified, "From the first few weeks after May 17, 2004, when marriage equality took effect in Massachusetts, ERISA has barely been an issue in Massachusetts... In the first few weeks of marriage equality, only a few companies chose not to provide retirement benefits under ERISA to same-sex couples."

The Review Commission in New Jersey found a markedly different experience under civil unions, and stated that the problem had not lessened since the law took effect.

Dr. Marshall Forstein, a Harvard Medical School psychiatry professor, testified that a purportedly separate but equal relationship status for same-sex couples was psychologically harmful both for such partners and for young people first coming out and faced with prospect that they can never enjoy the same family status as their heterosexual peers.

Dr. Judith Glassgold, president of the New Jersey Psychological Association, who works with children, adolescents, and their families, testified that unequal treatment in terms of relationship recognition harms children in gay and lesbian families.

The Review Commission report noted that transgendered people who married while living in their birth gender but now having transitioned receive no clarification about their marital status as the result of the civil union law. Whether they remain married or are now considered to be in a civil union - or neither -is an unanswered legal question.

Dr. Sylvia Rhue, director of religious affairs for the National Black Justice Coalition, testified about the economic burden facing poorer couples, many of them people of color, who are not given equal treatment by their employers. Unlike more affluent couples, this population often cannot afford the financial and legal advice necessary to protect each other, their retirement, and their life after the death of one of the partners.

The Review Commission pointed to the broad public benefits of extending marriage rights to same-sex couples, estimating that the weddings of 10,589 New Jersey couples, or approximately one half of the total identified by the Census, over the next three years, plus the influx of wedding tourists to the state, would generate $284 million in economic activity during that period, create 800 jobs, and increase state and local tax revenues by $19 million.

The report pointed to a similar range of benefits identified last year by the New York City comptroller in assessing the potential impact of marriage equality here, and noted that a range of observers in Massachusetts have found a positive benefit from the migration of skilled gay couples to that state since 2004.

The report did acknowledge that the refusal of the federal government and most state governments - New York is a notable exception - to recognize same-sex marriages from those states where they are legal will continue to create inequalities for same-sex couples. Access to federally-funded programs, such as Medicaid, as a spouse or married couple would be barred, and married couples traveling outside New Jersey might face limitations on having their spousal status recognized - in emergency health care situations, for example.

Still, Garden State Equality's Goldstein argued, it would likely be easier for a gay man or lesbian to explain that they are their partner's spouse than to spell out that the couple enjoys civil union rights.

The Commission recommended that the domestic partnership law that allows couples in which one partner is 62 or older to have their relationships enjoy government-recognized legal status be retained. More than 150 such couples have registered as partners, presumably to avoid the complications in their estate planning, likely already underway, that marriage would have entailed.

100% of Net Proceeds Donated to Lambda Legal to Fight for Marriage Equality

After California’s Proposition 8 Vote

NEW YORK, NY, December 8, 2008, 11:38AM — In the aftermath of California’s vote on Proposition 8, Love and Pride – the premier online jewelry destination for people who believe in diversity, equality and tolerance – is putting its wallet where its heart is by raising money – and awareness of a powerful number: 1,138. That’s the number of federal marriage rights and protections that are denied to same-sex couples – and the name of the jewelry line designed to create change in the national dialogue on the right of all loving couples to marry.

“I am a jewelry activist. I express my dreams and my beliefs through my designs,” said Udi Behr, creator of the Collection. “I design jewelry for people who want to make a fashion and social statement – and 1138 is the statement to make when it comes to marriage equality.”

At last count, the United States General Accounting Office reported 1,138 federal marriage rights, protections and benefits. These range from tax credits and use of the Family and Medical Leave Act to Social Security and immigration rights.

“When you tell someone there are more than a thousand rights married couples receive that their lesbian and gay daughters, sons, family and friends do not, it creates the kind of ‘a-ha’ moment that can change hearts and minds,” Behr continued. “And while we’ve made progress since Proposition 6 during the inspirational days of Harvey Milk, given the recent vote on Prop 8 in California, we still have a lot of hearts and minds to change.”

The 1138 Collection, available exclusively at www.loveandpride.com, includes necklaces, bracelets and earrings for women and men featuring the number 1138 in every design.

100% of the net proceeds from every purchase

will be donated to Lambda Legal, a legal advocacy

organization working towards marriage equality.

Behr concluded, “The 1138 Collection is designed to get people talking. When you wear the number, you start a conversation.”

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About Me

As a same sex marriage activist for almost a decade in NY. I hope this site will open the dialogue about the topic and keep people informed.This is a personal profile and blog. Articles I post here do not necessarily represent my own views, and views I do express are stated in a personal capacity and do not represent the position of any organization with which I might be affiliated.